Toronto Star

November 6, 1999

Guardian of justice

In a rare news conference, Beverley McLachlin sets the record straight on the role of Canada's highest court

By Edison Stewart
Toronto Star Ottawa Bureau

OTTAWA - Canada's judges must continue to make their rulings without fear of controversy or what tomorrow's headline will be, the country's new chief justice says.

``People have to know that when they have a conflict with the government or with someone else, there is a place they can go to present their case, and that even if they are the least powerful person at that moment, they will get a fair hearing,'' Beverley McLachlin said yesterday.

``And that . . . the judge will not be worried, in the short term, about what the headline is going to be tomorrow.''

Following Wednesday's announcement that she will replace Antonio Lamer when he steps down from the Supreme Court of Canada on Jan. 7, McLachlin gave a rare news conference on various issues and controversies surrounding the country's highest court.

McLachlin did not mention it, but the court has come under fire recently for a decision that East Coast aboriginals have the right to fish year-round. McLachlin was one of two judges on the nine-member court to disagree with that decision.

She also played down growing criticism of so-called judge-made law and accusations that courts are usurping the role of legislators.

``It's not that courts want to be a surrogate Parliament,'' she insisted, seated before a bank of microphones in the elegant wood-panelled Supreme Court dining room.

``The courts have demonstrated, for the most part, that they act with great respect for the legislators.''

But, speaking in English and French, she said Parliament and the Constitution have given the courts a certain duty that must be fulfilled, to uphold justice for Canadians.

``We can't shy away from it because we think it is going to be a difficult decision or because it may have large consequences.''

In exercising that duty, however, ``we are guided by traditions, we are guided by precedent in the law, we are guided by previous decisions.''

McLachlin, the first woman appointed to the powerful post, also said it is ``obvious the tough questions won't stop.'' The court will still have to deal with ground-breaking cases in human rights, family law, and new medicines and technologies.

She said public criticism is ``inevitable'' as the court faces difficult social issues - but a certain amount of that criticism is welcome.

``The law is not the preserve of the judges or a few lawyers. The law is the preserve of the people of Canada. It belongs to them and it is wonderful that people are interested in commenting on it and that is going to draw different points of view.

``So, I welcome that kind of discussion and I think it is very healthy in a vibrant democracy.

``On the other hand, when it gets personal it may be somewhat less useful because one is not talking about ideas; one is talking about personalities.''

She declined to comment on calls from some people, especially members of the Reform party, to make appointments to Canada's top court subject to parliamentary hearings and approval.

The procedure for appointment is ``essentially a political question'' and whatever it is, ``I respect it as a judge,'' she said.

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